Family Code Section 852 takes the Romance out of Gift-Giving


Family Code Section 852 takes the Romance out of Gift-Giving

Whenever I hear of the family law rule ” a gift of substantial value must be made in writing” I always think of a romantic moment when a husband surprises his wife with an expensive tennis bracelet of brilliant diamonds and in that moment Family Code Section 852 requires a subsequent written note expressing his intent to divest all community property interest in the bracelet to her as sole and separate property.  Who does that?  No one.

Well, the courts require it.  Without it,  he still maintains half interest in the bracelet upon divorce.  Family Code Section 850 governs “transmutations.”  Transmutations are written acknowledgments transferring characterization of property.  As Family Code Section 850 describes property can go from separate property to community, community to separate or separate to separate.  Under Family Code Section 851 the express acknowledgment is governed by laws of fraudulent transfer; this means the transfer cannot be by coercion, duress or undue influence.

The main part of Family Code Section 852 provides there must be an express written intent to transfer characterization of property from the person whose interest is adverse.  In this case, the husband would have to provide express written intent.  The Marriage of McDonald provided some relief to this stringent rule holding that not much is required, only that the express intent to transfer interest is clear.  For example, a card prepared by the husband with the proper wording would even work.  In the end, the moment could not be lost if the card was written in a way to satisfy both Family Code Section 852 and the beautiful moment.


Disclaimer * Nothing in this post shall constitute legal advice nor create an attorney-client relationship.  Do not rely on this post as legal advice, please consult an attorney should you have any thoughts, questions or concerns regarding property characterization including but not limited to gifting, transferring title or transferring character.  This post does not go in depth as to legal implications or requirements.  It is only meant for a brief, breezy read and under no circumstances whatsoever to be relied upon.